Monday, March 16, 2015
GW Law Professor Naomi Cahn and Amy Zeittlow, affiliate scholar with the Institute of American Values, have collaborated on a new article that is fascinating. In "Making Things Fair: An Empirical Study of How People Approach the Wealth Transmission System," to be published in a forthcoming issue of the Elder Law Journal, they ask fundamental questions about whether traditional laws governing testate and intestate wealth transmission reflect and serve the wishes of most Americans. Professor Cahn previews the article as follows:
Based on an empirical study of intergenerational care for Baby Boomers, the article shows how the inheritance process actually works for many Americans. Two fundamental questions about the wealth transfer system guided our analysis of the data: 1) does the contemporary inheritance process respond to the changing structure of American families; and 2) does it reflect the needs of the non-elite, who have not traditionally been the focus of the system?
Our study shows that the formal laws of the inheritance system are largely irrelevant to how property is transferred at death. While the contemporary trusts and estates canon focuses on the importance of planning for traditional forms of wealth in nuclear families, this study focuses on the transmission of wealth that has high emotional, but low financial, value. We illustrate how the logic of “making things fair” structured how families navigated the distribution process and accessed the law. Consequently, the article recommends that law reform should be guided by the needs of contemporary families, where not only is wealth defined broadly but also family is defined broadly, through ties that are both formal and functional. This means establishing default rules that maximize planning while also protecting familial relationships.
The article is part of a new book by the authors titled "Homeward Bound," with planned publication in 2016, and the authors welcome comments and suggestions.
March 16, 2015 in Books, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
Sunday, March 15, 2015
Attorney and author Steve Dale has published a new book, Achieving Independence- A Guide to Creating an Estate Plan Which Ensures Quality of Life for You and Your Loved One with a Disability. According to the author
The primary purpose of this guide is to assist families in the planning process of creating a special needs trust for a loved one with a disability. Stephen shares with the reader his experience as an attorney that has focused primarily on estate planning for persons with disabilities and their families for the past 25 years. He also illustrates some of the challenges that persons with disabilities and their families face by sharing his experiences growing up in California’s State Hospital System as a child of three generations of institutional workers and later as a Psychiatric Technician giving direct care in a variety of psychiatric hospitals for 17 years.
Stephen and his office developed the Achieving Independence System to educate clients on key issues and decisions commonly encountered in creating a special needs trust so clients can be better prepared before meeting with their attorneys and advisors to create a team that best serves their needs. After the plan is created, an effective plan will assist the trust management team to focus on what is really important; to assist a person with a disability to live as independently as possible and to experience a quality of life that many persons who are not disabled take for granted. In essence to achieve the highest level of independence possible free from abuse and neglect.
The book runs 133 pages and is available from Amazon as a paperback for $20.00. Steve's Independence project is explained on his website, Achieving Independence. Full disclosure, Steve is a friend and a regular speaker at Stetson's annual Special Needs Conference.
Thursday, March 12, 2015
Colleagues in the U.K., Dr. Una Lynch in Northern Ireland and Dr. Karim Hadjri in Lancashire, England, shared information on an opening for a new academic position in aging research. The listing nicely illustrates how global research into aging issues is multi-faceted, challenging and not solely focused on health care:
The postholder will be an established researcher in Architecture or an Ageing related discipline, with demonstrable evidence of developing and promoting their cognate research or knowledge transfer/consultancy activity to high-level peers. The appointee will work closely with the Project Coordinator of ODESSA. ODESSA - Optimising care delivery models to support ageing-in-place: towards autonomy, affordability and financial sustainability, is a Europe-China initiative funded by China NSF and research funding agencies from four EU countries (UK, France, Germany and The Netherlands) under the Understanding Population Change theme. The project partners are Tsinghua University from Beijing, China, and Université Paris Dauphine and Université CNRS/Paris I-Panthéon Sorbonne from Paris, France. ESRC is the UK funding agency and the programme manager. The total value of the project is around GBP 1m and duration is 36 months starting on 1st March 2015.
The successful candidate will have an established international reputation in research (or knowledge transfer/consultancy), research project coordination and management, with demonstrable high impact areas that are supported and evidenced in leading peer-reviewed journals and extant literature. Educated with a PhD in architecture, built environment, or ageing related disciplines, and evidence of knowledge of architecture or ageing related disciplines research methods as well as a proven track record of meeting project deliverables and deadline is essential for this position.
Applicants can obtain further information and details here or by contacting the Project Coordinator, Professor Karim Hadjri, at University of Central Lancashire.
Wednesday, March 11, 2015
Julie Childs, Project Manager for the U.S. Department of Justice's Elder Justice Website shared with us the resources now available to researchers, students and advocates. Some of the highlights:
Here, victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and territories. Simply enter your zipcode to find local resources to assist you.
Federal, State, and local prosecutors will find three different databases containing sample pleadings and statutes.
Researchers in the elder abuse field may access a database containing bibliographic information for thousands of elder abuse and financial exploitation articles and reviews.
Practitioners -- including professionals of all types who work with elder abuse and its consequences -- will find information about resources available to help them prevent elder abuse and assist those who have already been abused, neglected or exploited.
This website is intended to be a living and dynamic resource. It will be updated often to reflect changes in the law, add new sample documents, and provide news in the rapidly evolving elder justice field.
It will be interesting to watch this site develop.
March 11, 2015 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)
Tuesday, March 10, 2015
University of Florida Professor Stephen M. Golant has a new book, Aging in the Right Place. The gerontologist advocates examining a host of modern options, and urges resistance to an overly simplistic mantra of "aging in place" as the only goal. For example, he examines assisted living, co-housing, supported "independent living" environments, the "village" movement and CCRCs.
Interviewed for a Washington Post article, Golant explained:
“It’s not an all-or-nothing situation, obviously,” Golant said in an interview about aging-in-place. “But I just wanted to point out the imperfections, and the weaknesses in some of the arguments. . .I want to point out that sometimes there’s too much hype.”
It’s the sort of hype that has surrounded what he calls the New Gerontology, a long running trend that sometimes seems to imply that if people follow certain regimens of diet, physical exercise, social activity and cognitive training, they might avoid aging altogether.
As I have also suggested here, it is important for individuals and families to be realistic about what it will take to stay at home safely, making it important to be open to a larger definition of "home" in order to emphasize better quality of life.
In Draper v. Colvin, petitioner sought judicial review of SSA's denial of her application for SSI benefits. Her claim was sympathetic, as "[e]ighteen-year-old Stephany Draper suffered a traumatic brain injury in a car accident in June 2006."
In an admittedly "hard line" ruling on March 3, the 8th Circuit rejected her argument that her parents' intent to establish a valid third-party-settled special needs trust, using proceeds from a settlement of a personal injury suit on her behalf, should permit her to claim SSI.
The ruling means that over $400,000 will be treated as "available resources," thus requiring spend down before she would be eligible for benefits. The court explained (minus citations):
Admittedly, some evidence in the record supports Draper's claim that her parents intended to act in their individual capacities. Draper's parents identified themselves individually as settlors and trustees, and the trust document explicitly states that it was established “pursuant to 42 U.S.C. § 1396p(d)(4)(A)," a provision which notes that a third party, such as a parent, must create the special needs trust for the benefit of the disabled person. Nevertheless, as discussed [earlier in the opinion], other facts provide substantial evidence to support the conclusion that Draper's parents acted using the power of attorney when establishing the trust.
The Court continued on to its tough bottom line:
March 10, 2015 in Cognitive Impairment, Estates and Trusts, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Social Security, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Researchers Amelia Karraker, Department of Human Development and Family Studies at Iowa State University and Kenzie Latham, Department of Sociology at Indiana University and Purdue University, recently published "In Sickness and in Health? Physical Illness as a Risk Factor for Marital Dissolution in Later Life" in the Journal of Health and Social Behavior. From the abstract:
"The health consequences of marital dissolution are well known, but little work has examined the impact of health on the risk of marital dissolution. In this study we use a sample of 2,701 marriages from the Health and Retirement Study (1992–2010) to examine the role of serious physical illness onset (i.e., cancer, heart problems, lung disease, and/or stroke) in subsequent marital dissolution due to either divorce or widowhood. We use a series of discrete-time event history models with competing risks to estimate the impact of husband’s and wife’s physical illness onset on risk of divorce and widowhood.
We find that only wife’s illness onset is associated with elevated risk of divorce, while either husband’s or wife’s illness onset is associated with elevated risk of widowhood. These findings suggest the importance of health as a determinant of marital dissolution in later life via both biological and gendered social pathways."
The highlighted finding is generating lots of coverage in the popular press. Thanks to Naomi Cahn, who is also a co-author of the similarly relevant book, Marriage Markets: How Inequality is Remaking the American Family, for sharing the study link.
The Department of Labor (DOL) has released a new fact sheet on an amendment to the rule defining spouse under Family and Medical Leave Act (FMLA). Fact Sheet: Final Rule to Amend the Definition of Spouse in the Family and Medical Leave Act Regulations notes that the DOL final rule was published February 25 and goes into effect on March 27, 2015. The fact sheet explains the change
In order to provide FMLA rights to all legally married same-sex couples consistent with the Windsor decision and the President’s directive, the Department subsequently issued a Final Rule on February 25, 2015, revising the regulatory definition of spouse under the FMLA. The Final Rule amends the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. This will ensure that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights. The Final Rule is effective on March 27, 2015.
The fact sheet highlights two important changes in the final rule, changing the "state of residence" to "place of celebration" in defining "spouse." As well, the definition of spouse is expanded. It "expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state."
The text of the final rule is available here.
Monday, March 9, 2015
On Sunday I had the interesting opportunity to be in the audience for the third performance of a new play, The Originalist, at Arena Stage in Washington D.C. Playwright John Strand has given Justice Antonin Scalia center stage and the spotlight for close to two hours, in a play filled with opera, literary references, plenty of legal humor, a few card games, and lots of verbal boxing between the justice and his young, liberal "contra" clerk.
The play makes deft use of Scalia's own words, drawn from opinions and public presentations, and actor Edward Gero wears the robes -- and wields Scalia's weapons -- with authority. Kerry Warren, holds her ground well, both as actress and antagonist in the role of the law clerk. The play concludes in the recent past, as Justice Scalia debates with the clerk the words he will announce from the bench for his dissent on the Defense of Marriage Act (DOMA) case, United States v. Windsor.
The play succeeds especially well in an important goal of the playwright, as identified in a lively post-production Q & A session with the audience. The play encourages serious discussion of what it means to "interpret" the Constitution. Through the voice of the clerk, it also asks whether there is any room for true solutions to emerge in the polarized world of left-right politics.
The Originalist also proved to be surprisingly relevant to themes in this Blog. Scalia is depicted as the aging lion in winter, given to occasional moments of introspection and an intriguing episode of pique (hint: what career aspiration may he have pondered?). At one point he is seen as attempting to justify his intransigence with the observation that he's growing old, a condition for which there is "no cure."
The play -- set in the intimate black box space of the Arlene and Robert Kogod Cradle -- is scheduled to run until April 26.
Friday, March 6, 2015
Harvard Law Professor Robert H. Sitkoff is speaking at University of Illinois School of Law on Monday, March 9. The topic is "Revocable Trusts & Incapacity Planning: More then Just a Will Substitute."
Here are details provided by Illinois Law Professor Richard Kaplan:
The use of trusts has evolved from means of transferring property to mechanisms for managing assets and more recently, to will substitutes for avoiding probate and simplifying post-death transfers. But lawyers increasingly use revocable trusts in planning for possible client incapacity to avoid the costs and publicity associated with custodianship and guardianship. State-level reforms of trust law to accommodate older uses of these devices are not, however, well-suited to this newer use of trusts, and this lecture will examine those reforms in this context.
Professor Sitkoff was the youngest professor to receive a chair in the history of Harvard Law School. He previously taught at New York University School of Law and at Northwestern University School of Law. After graduated from the University of Chicago Law School with High Honors, he clerked for then Chief Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. Professor Sitkoff is an active participant in trust and estates law reform. He is a liaison member of the Joint Editorial Board for Uniform Trusts and Estates Acts within the Uniform Law Commission and has been a member of several drafting committees for acts involving trusts and estates matters. Sitkoff is also a member of the American Law Institute’s Council and has served on the consultative groups for the Restatement (Third) of Trusts and the Restatement (Third) of Property: Wills and Other Donative Transfers.
Word from Dick Kaplan is that Rob's presentation will be available (eventually) via a recording, and his presentation will also be captured as an article in University of Illinois' Elder Law Journal.
My students often ask why all casebooks can't be as engaging to read as the "Dukeminier" text on Wills, Trusts & Estates -- and I suspect one reason is that Rob Sitkoff, although uniquely prolific and gifted, is still only human and cannot write them all!
Postscript: I asked Rob to send me something other than his "official" Harvard photo. The one above seems to capture his spirit and the smile I sometimes detect in his footnotes.
Pennsylvania Bar Association Program on New Rules of Professional Conduct & Disciplinary Enforcement
On Wednesday, March 25, 2015 (1:30 to 3:30 p.m.), the Pennsylvania Bar Association (PBA)'s Elder Law Section is hosting a panel session at the annual PBA Section/Committee Day to discuss important changes in the Pennsylvania Rules of Professional Conduct and the Disciplinary Enforcement Rules.
Several of the recent changes, including rules mandating greater oversight for trust accounts, timelier handling of complaints, and specific new prohibitions or restrictions on attorney involvement in marketing of "investment products," were a response, at least in part, to serious cases of attorney misconduct resulting in tragic financial losses for individuals. In some instances the clients were older persons who entrusted large retirement assets to the care of a small number of attorneys.
In planning the program, Elder Law Section Chair Jacqui Shafer commented that the program reflects the continuing commitment of the Bar and the Section to take affirmative steps to address and prevent misappropriation of funds from any client, including vulnerable seniors and their families.
Panelists include experienced private practitioners in elder law or estate planning practices and representatives of the Disciplinary Board and PBA's Legal Ethics and Professional Responsibilities Section. Several participants were members of the Pennsylvania's recent Supreme Court Elder Law Task Force.
Here is the link for more details on the program, including the link for required registration (free, including lunch). The deadline for on-line registration is March 20.
March 6, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, March 5, 2015
Neither short nor sweet? Here is a link to the written Transcript of the oral argument before the United States Supreme Court on March 4, 2015 in King v. Burwell.
Yesterday I wrote about the Utah Supreme Court decision rejecting application of Nevada law to determine the nature of an asset protection trust. Would the same result occur if the claimant was an "ordinary" creditor, rather than a spouse and co-settlor?
One way to get in on the discussion would be the ABA's "Jurisdiction Selection Series" on "Domestic Asset Protection Trusts." And as luck would have it, the next in the series of 5 webinar sessions covers Arizona, Maryland, New Hampshire --- and Nevada law. The program is Tuesday, April 14, 2015, and will be followed by a session on June 9, 2015 covering Hawaii, Kentucky, South Dakota and Utah. Here are some of the topics to be addressed:
- What is an inter vivos QTIP trust and how can it help my clients?
- Will domestic self-settled asset protection trusts benefit my clients?
- Do the costs of creating a trust in one state for creditor protection or taxation benefits really outweigh the creation of such a trust in another?
- Is the trust really protected from creditors?
- Can the trust be used to avoid the income tax in the grantor's state of residence?
- Can a same sex couple benefit from the use of these trusts?
- Is using an offshore trust better?
A number of states have laws governing "full blown self-settled asset protection trusts" or permit some form of similar trust. Here is the link to the details about registration, cost and timing for all of the ABA sessions.
Hat Tip to Penn State Law Professor James Puckett for sharing the timely info on this series.
Wednesday, March 4, 2015
In Dahl v. Dahl, the Utah Supreme Court was asked to examine the effect of a choice-of-law clause in a trust that purported to be "irrevocable." The clause provided:
"Governing Law. The validity, construction and effect of the provisions of this Agreement in all respects shall be governed and regulated according to and by the laws of the State of Nevada. The administration of each Trust shall be governed by the laws of the state in which the Trust is being administered."
The first sentence of the provision was significant, because the trust granted husband-settlor continuing rights of control, even as he argued the "irrevocable" label was valid, prohibiting wife from claiming any marital interest in assets used to fund the trust.
The New York Times Ethicists take on an estate dispute. Here's how it starts:
In order to decrease his net worth before beginning divorce proceedings, my brother invested $600,000 in an apartment in my father’s name. Years later, he had our mother co-sign a business loan. When the business failed, my mother was sued for $3 million she didn’t have. After she died of cancer, my father fought the suit for many years. At 93, he settled for a $1.1 million loss. Unable to live his accustomed lifestyle, he approached my brother with the expectation that my brother would supplement his income. When my brother refused, my father sold the apartment and kept the $600,000.
When my father died, he left his estate to be split between my two adult sons....
Perhaps you have already guessed that "brother" is asserting a claim against the estate to recover "his" $600,000.
For the full analysis, listen to the podcast or read the shortened discussion here.
Tuesday, March 3, 2015
Heidi Rai Stewart, an attorney who concentrates her practice in "estate planning, estate and trust administration, special needs planning, elder law and Orphan's Court matters," has an interesting article in the March-April issue of The Pennsylvania Lawyer.
In "A Hit Between the Eyes - The Danger of Treating Legal Practice as a Commodity," Ms. Stewart takes on the hot topic of nontraditional providers of legal documents or legal advice, including lower-cost sources such as LegalZoom's partnership with Sam's Club or Avvo Advisor, an "on-demand service providing legal advice at fixed rates."
Ms. Stewart makes several points, including:
- "A fill-in-the-blank document program simply cannot address the possible eventualities that a skilled attorney will bring to a client's attention. Although attorneys use forms, a skilled lawyer does not simply fill in blanks."
- "Commoditization of legal services and documents induces the mindset of the cheaper the better."
- "There has long been a perception, reflected oftentimes in negative humor, that attorneys are solely concerned with making money.... That perception must change.... [A]ttorneys must better communicate the value of the breadth of their knowledge and wisdom if they want to remain competitive in the marketplace...."
Ms. Stewart asks "Are companies that provide DIY legal documents engaging in the unauthorized practice of law in Pennsylvania?" She observes that such a claim has not yet been heard in Pennsylvania.
Ms. Stewart outlines several recent cases from other states. She concludes by encouraging lawyers to engage in introspection and to think deeply:
"Do we distinguish ourselves by rising to the occasion with our integrity, skills, knowledge and wisdom? Or do we just continue on the path already trod while the public continues to search for the cheapest way to deal with life's most important issues?"
The issue containing the article is currently available only to members of the Pennsylvania Bar Association. Worth tracking down the full article!
Monday, March 2, 2015
The White House Council of Economic Advisors released "The Effects of Conflicted Investment Advice on Retirement Savings" in February 2015, and the report is a must-read for anyone teaching courses on aging policy.
The major focus of the analysis is on evidence of "conflicts of interest" for those advising individuals on roll-over investment of IRA accounts, but the findings undoubtedly have relevance beyond that window on retirement planning.
The decision whether to roll over one’s assets into an IRA can be confusing and the set of financial products that can be held in an IRA is vast, including savings accounts, money market accounts, mutual funds, exchange-traded funds, individual stocks and bonds, and annuities. Selecting and managing IRA investments can be a challenging and time-consuming task, frequently one of the most complex financial decisions in a person’s life, and many Americans turn to professional advisers for assistance. However, financial advisers are often compensated through fees and commissions that depend on their clients’ actions. Such fee structures generate acute conflicts of interest: the best recommendation for the saver may not be the best recommendation for the adviser’s bottom line.
The report focuses on the quantifiable cost from conflicted advice, concluding that savers receiving such advice "earn returns roughly 1 percentage point lower each year." But isn't there also a deeper cost, as the large swath of middle-income Americans, who may have justified fears of being able to safely evaluate investment risk and their investment advisors, do nothing productive with their savings?
The New York Times editorial board draws upon the White House Council's report to call for adoption of reality-based rules on fiduciary duties for the financial services industry. See NYT's "Protecting Fragile Retirement Nest Eggs."
Alzheimer's Research UK is releasing a report this month about the impact of dementia on women. Details released in advance of the formal launch are eye-opening.
As reported in The Guardian, “'Dementia is a life-shattering condition and represents a ‘triple whammy’ for women,' said Hilary Evans, director of external affairs at Alzheimer’s Research UK. 'More women are dying of dementia, more women are having to bear the burden of care, while a disproportionate number of women currently working in dementia research are having to leave science.'”
The full study calls for the government to make a significant increase in its funding of dementia research and an improved investment in care. Further, the report will explain that:
■ More than 500,000 women [in the U.K.] are now affected by dementia. About 350,000 men have the condition.
■ Women over 60 are now twice as likely to get dementia as breast cancer.
■ Women are more than two-and-a-half times more likely than men to be care-givers of people with dementia.
■ Most care- givers do not choose or plan to take on this role and often find the experience highly stressful.
Thanks to friends at CARDI, the Centre for Ageing Research and Development in Ireland for sharing this news. The formal launch of the Alzheimer's Research UK report appears timed to coincide with their "sold-out" 2015 Conference on March 10-11 in London.
Sunday, March 1, 2015
This week, the Supreme Court will hear oral arguments on the latest challenge to the ACA, in King v. Burwell. The New York Times offers historical perspective about an earlier journey to enact federal legislation that mandated the nation's first broad health care coverage, the Medicare program:
Lyndon B. Johnson was often derided for being egocentric, but when it came time to sign his landmark bill creating Medicare, 50 years ago this July, he graciously insisted on sharing the credit with the 81-year-old Harry Truman. At almost the last moment, Johnson decided to change the location from Washington to Truman’s presidential library in Independence, Mo.
During the ceremony, Johnson noted that in 1945, the newly installed President Truman had called for national health insurance, planting “the seeds of compassion and duty which have today flowered into care for the sick, and serenity for the fearful.” Johnson then presented his host with the nation’s first Medicare card. Deeply moved, Truman later wrote in a letter to Johnson that the ceremony was “the highlight of my post-White House days.”
For more details, read "LBJ and Truman: The Bond That Helped Forge Medicare."
For more on this week's Supreme Court challenge, from the Washington Post, see "Five Myths About King v. Burwell."
Friday, February 27, 2015
For more than twenty-five years, The Atlantic Philanthropies has been one of the most important funding sources for nonprofit and NGO work on health, education and equality issues in the U.S. and beyond, often providing key support for legal advocates including those at the National Senior Citizens Law Center (with its new name, Justice in Aging). My first encounter with AP began in Ireland in 2009-10, when I was based at the Changing Ageing Partnership, an AP funded-project at Queen's University Belfast.
Everywhere I turned during that sabbatical, I encountered the good works underway as the result of Chuck Feeney's decision in the mid-1980s to transfer virtually all of his considerable personal wealth to Atlantic. I learned that for the first half of AP's history, the grantmaking was anonymous and Chuck Feeney's role was largely unknown. The publication of The Billionaire Who Wasn't, by Irish writer Conor O'Clery, helped to change that visibility, and Mr. Feeney began to embrace a more public commitment to "giving while living."
My own work was impacted by what I learned that year, and I soon added a course on Nonprofit Organizations Law to my teaching package at Penn State's Dickinson Law.
Now Atlantic Philanthropies is facing its final two years of new grants, with 2016 being the concluding year. The final grants will focus on four themes: